County of Allegheny v. Allegheny County Prison Employees Independent Union, 110719 PACCA, 1742 C.D. 2018

Docket Nº:1742 C.D. 2018
Opinion Judge:RENÉE COHN JUBELIRER JUDGE.
Party Name:County of Allegheny, Pennsylvania, Appellant v. Allegheny County Prison Employees Independent Union
Judge Panel:BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge.
Case Date:November 07, 2019
Court:Commonwealth Court of Pennsylvania
 
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County of Allegheny, Pennsylvania, Appellant

v.

Allegheny County Prison Employees Independent Union

No. 1742 C.D. 2018

Commonwealth Court of Pennsylvania

November 7, 2019

OPINION NOT REPORTED

Argued: October 3, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge.

MEMORANDUM OPINION

RENÉE COHN JUBELIRER JUDGE.

The County of Allegheny, Pennsylvania (County) appeals from an Order of the Court of Common Pleas of Allegheny County (common pleas) denying the County's Petition to Vacate an Act 1951 Arbitration Award (Petition to Vacate). The Arbitration Award converted correctional officer David Foriska's (Grievant) termination for excessive use of force to a 30-day suspension and reinstated him with 11 months' back pay. As it did before common pleas, the County argues the Arbitration Award does not derive its essence from the Collective Bargaining Agreement (CBA) with the Allegheny County Prison Employees Independent Union (Union) and it violates public policy. After thorough review, we are constrained to affirm.

I.

Factual Background

a. Grievance and hearing

The County discharged Grievant on October 27, 2017, for violations of the County's Bureau of Corrections' Policies. Specifically, Grievant was discharged for violations of Policy 207, governing use of force, and Policy 605, the code of ethics, in a September 2017 incident involving Grievant and D.J. (Arrestee), a new arrestee. Policy 207 provides that use of force "is authorized when an employee reasonably believes such force is necessary to accomplish" certain enumerated objectives for protection and compliance with County rules and regulations. (Reproduced Record (R.R.) at 140a.) Policy 605 prohibits employees from "knowingly or willfully submit[ting] a report containing false statements." (Id. at 152a.) Policy 605 also delineates certain "no tolerance policies," which include submitting false reports and "[a]ssaults and gross violations of use of force on inmates." (Id. at 152a-53a.) Policy 605 sets forth that violations of no tolerance policies "will result in severe disciplinary action up to termination of employment," and "do not fall within the perimeters of progressive discipline." (Id. at 153a.)

The County determined that Grievant's discharge was warranted because Grievant struck Arrestee in violation of Policy 2072 and did not report his actions as a strike when he reported the incident after the fact, in violation of Policy 605.

Following Grievant's discharge for these violations, the Union filed a grievance, and an arbitration hearing was held on May 2, 2018. On behalf of the County, chief deputy warden at the Allegheny County Jail (Deputy Warden) testified. A retired County corrections officer (Corrections Officer), a retired Pennsylvania State Police trooper and use of force consultant (Consultant), and Grievant testified on the Union's behalf.

Generally, the testimony was as follows. Deputy Warden reviewed the surveillance video of the incident and Grievant's report of it, and testified he believed the video depicted Grievant pushing Arrestee to the ground after she turned towards him while he and another officer escorted her to a holding cell. Deputy Warden testified that this was in violation of the use of force policy, and Grievant's report of the incident thereafter did not accurately represent his actions. Deputy Warden also testified that Grievant had two prior disciplines for use of force violations, one of which was withdrawn and one of which resulted in a three-day suspension. Corrections Officer testified that his review of the video indicated that Grievant's actions were appropriate, as he did not strike Arrestee but followed protocol to put his hands up in protection when Arrestee turned towards him. Consultant testified that he saw no attempted use of force in his review of the video; rather, Arrestee was intoxicated, which affected her motor skills, and Grievant was significantly larger than Arrestee, meaning that when Arrestee suddenly stopped and turned, Arrestee's collision with Grievant caused her fall. Grievant testified that Arrestee was intoxicated and disruptive that night, and he followed protocol and was positioned slightly behind Arrestee during the escort when Arrestee suddenly stopped and turned with her hands raised. Grievant testified that he put out his hand, and Arrestee collided with him and fell. Following the hearing, both parties submitted post-hearing briefs.

b. Arbitrator's factual findings

Based on the testimony provided and the surveillance video shown, the Arbitrator found as follows. On September 29, 2017, Grievant was working at the Allegheny County Jail doing intake. Arrestee was brought in for processing around 11:30 p.m. and was intoxicated, "uncooperative and at times belligerent," and "acting in a verbally abusive manner toward the intake [c]orrections [o]fficers." (Arbitration Award at 6.) After Arrestee was medically evaluated and processed, Grievant and a fellow corrections officer escorted Arrestee down a hallway to a holding cell. The surveillance video shows that there were two instances of physical contact between Arrestee and Grievant, although it was only the second contact that formed the basis for Grievant's discharge. The Arbitrator explained: After the initial contact, the video shows [Arrestee], while being escorted down the hallway by the [G]rievant and another [c]orrections [o]fficer, turn toward the [G]rievant. [Arrestee] did not strike or push the [G]rievant. There is no audio accompanying the video, so it is not known what, if anything, [Arrestee] said to the [G]rievant. However, credible testimony at [the] hearing indicates that [Arrestee] continued to be verbally abusive toward the [G]rievant.

The [G]rievant reacted to [Arrestee] turning toward him. The [G]rievant extended his arms and made contact with [Arrestee]. [Arrestee] fell to the floor but was not injured.

(Id.) Grievant voluntarily reported the incident, explaining in a written statement that Arrestee "ran into him, causing her to fall." (Id. at 7.) Grievant described in his report that he "put [his] hand up to redirect" Arrestee and told her to proceed to the cell, at which time Arrestee "walked into [Grievant's] hand and fell to the ground." (Id.) The County discharged Grievant[3] for his actions in this incident and the report he filed thereafter, alleging violations of Policies 207 and 605.

c. Arbitrator's award

1. Policy 207, Use of Force

Arbitrator stated that the issue before the Arbitrator was whether the County had just cause to discharge the Grievant and, if not, what would be the appropriate remedy. Beginning with Policy 207, which relates to the use of force, the Arbitrator summarized the requirement that officers are to use the least amount of force necessary to achieve an authorized purpose and noted the County's position that Grievant struck the Arrestee, which was not the least amount of force necessary to control Arrestee under the circumstances. (Id. at 12.) The Arbitrator disagreed with the County's position, reasoning that "[t]he evidence on which this case turns is not the dueling testimony" regarding whether Grievant used appropriate force, but "the videotape of the incident." (Id.) In the Arbitrator's opinion, the video was "inconclusive as to whether the [G]rievant struck the [A]rrestee," as it showed that Grievant extended his arms and Arrestee fell to the ground but the amount of force involved was unclear. (Id.) It was not unreasonable, in the Arbitrator's opinion, to find that Grievant "reacted instinctively toward a belligerent inmate who turned around in his direction." (Id.) Relying on Consultant's testimony as to the effects of intoxication and the disparity in size between Grievant and Arrestee depicted in the video, the Arbitrator explained that it was "entirely plausible that even the slightest incidental contact" between Grievant and Arrestee could cause Arrestee to fall to the floor. (Id. at 12-13.) Nonetheless, the Arbitrator did not agree that Arrestee walked into Grievant's hand as Grievant reported following the incident.

The Arbitrator rejected the County's argument in its post-hearing brief that the Arbitrator was bound by a prior arbitration award by Arbitrator Atul Maharaja (Maharaja Award) between the County and the Union involving a different grievant and a violation of the County's anti-fraternization policy. The County argued that, like the anti-fraternization policy, the use of force policy and ethics code are no tolerance policies; thus, as explained in the Maharaja Award, the County could discharge employees for violations of these policies without just cause. The Arbitrator disagreed that the Maharaja Award was binding because it involves "a...

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